from the law-student-on-law-student-legal-action dept

Back in 2014, we wrote about a crazy story, where the Harvard Law Review was claiming copyright over legal citation standards. It's true that the Harvard Law Review Association has published the famous "Bluebook" of legal citation standards for many years, but the idea that such citations are copyrightable is crazy. In response to this, law professor Chris Sprigman and open records guru Carl Malamud alerted the world of their intention to publish "Baby Blue" -- a competing legal citations publication. They noted that the 10th edition of the Bluebook, which as published in 1958, had clearly fallen into the public domain, and they were going to use that as the starting point for their competing product. Late in December, we pointed out that Harvard Law Review freaked out after its expensive Ropes & Gray lawyers saw a few tweets from Malamud suggesting Baby Blue was almost ready for publication. On Christmas Eve, a pricey lawyer sent off a nastygram, threatening a copyright infringement lawsuit if Baby Blue were published.

Here’s a bit of free legal advice: If you want to assert copyright protection over something, don’t call it “A Uniform System of Citation” — because systems are, by definition, unprotected by copyright. Section 102(b) of the Copyright Act couldn’t be clearer:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, [or] method of operation, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.

And now... everyone gets to wait and see what the Harvard Law Review Association decides to do.

from the our-national-security-depends-on-it,-apparently dept

Towards the end of 2013, IP-Watch -- along with the Yale Media Freedom and Access Center -- filed a FOIA lawsuit against the USTR for its refusal to release its TPP draft documents. The USTR spent a year ignoring IP-Watch's William New's request before telling him the release of draft agreements would "harm national security."

What trade agreements have to do with "national security" is anyone's guess (especially since the USTR has cloaked the entire TPP proceedings in opacity), but the conclusion being drawn by this refusal is that the USTR feels the public has no right to know about trade agreements that affect the public.

As government negotiators dig into perhaps the final round of the Trans-Pacific Partnership trade negotiations this week in Atlanta, they may take comfort in knowing that nothing they are doing has to be shared with the public they represent until years after it is over. That’s because a federal district court in Manhattan decided this week, in a closely watched Freedom of Information Act case brought by Intellectual Property Watch, that draft texts of the trade deal can be kept secret.

The very small upside of this decision is that the court did find some of the USTR's arguments for secrecy suspect. While it did side with the USTR's arguments on the withheld draft agreements, it found the agency did not present credible justification for its use of some FOIA exemptions in regards to requested communications.

First and foremost, USTR’s declarations rely purely on conclusory statements from the agency itself, which simply proclaim that disclosure would complicate USTR’s future efforts. Even the sole piece of evidence meant to represent the views of actual private-sector actors comes from the agency’s declaration, and this too is vague and conclusory…

Critically, none of USTR’s explanations are document-specific, nor even category-specific. They are blanket assertions meant to cover all withholdings made under § 2155(g)(1) and Exemption 4…

The court also noted the USTR's arguments in favor of withholding information under Exemption 4 were undercut by wording in the agency's own policies.

In response to Plaintiffs’ argument that the withheld commercial or financial information is not “confidential” because it has already been shared among all ITAC members, USTR argues only that ITAC members are sworn to secrecy and cannot use information they receive via ITACs outside of those committees. But the obvious reply, absent from USTR’s briefs, is that USTR’s own Operations Manual states that information subject to Exemption 4 withholding will be kept from other ITAC members.

And if the USTR can't keep its own secrecy arguments straight, there's a good chance it has not performed the thorough examination of the contested documents it claimed it had.

As Plaintiffs argue, USTR’s failure to make this simple response raises questions about whether the agency has wrongly withheld information under Exemption 4 that has already been shared with other ITAC members. Finally, although the Court does not question USTR’s good faith in responding to this FOIA request, Plaintiffs are also correct to point out the troubling nature of USTR’s first round of responsive disclosures here, which apparently withheld 149 pages in full and redacted portions of 413 pages improperly, despite sworn declarations attesting to a line-by-line review of all the documents.

That being said, the court still won't be ordering the USTR to release draft TPP documents. The only thing it has done is order the agency to present documents explaining its withholding of certain communications under two FOIA exemptions. The bulk of the trade agreements will remain hidden away from the public -- this time with the court's blessing and thanks to the administration's advocacy on behalf of continued opacity.

from the and-the-lawsuit-is-equally-questionable dept

Dr. Edward Tobinick was the subject of an LA Times article in 2013 -- I'd link to it, but it appears to have disappeared, though I don't know why -- which highlighted his (apparently now discontinued) practice of prescribing a particular drug, Enbrel, for Alzheimer's patients. Enbrel is approved for the treatment of arthritis. Steven Novella, a physician at Yale and who maintains the ScienceBasedMedicine blog which (you guessed it) focuses on playing up science-based medicine while criticizing more quackery-based medicine, wrote a critical blog post about Tobinick's practice. Novella carefully lays out his arguments as to why Tobinick appears to be engaged in what he believes is quackery. It's actually fairly even-handed, laying out various possibilities, and noting that there is some gray area for off-label uses of the drug. But then he points out that Tobinick appears to be making claims way beyond what any evidence supports:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.

On his website he cites many studies, but none of them establish the effectiveness of Enbrel for any of the conditions he is treating. Most of them are simply identifying that TNF is increased in the condition. This is very weak evidence, however, as markers of immune activity are frequently increased in diseases that are not caused by immune activity. The immune system is very reactive—it reacts to disease with inflammation (often what we refer to as the cleanup crew). The inflammation is not causing the disease, it is simply the body’s reaction to it.

Tobinick was apparently upset about this and asked Novella to take down the blog post. Novella, quite reasonably, refused. Thirteen months later, Tobinick sued Novella and Yale University. Over what, you might ask? Well, there's clearly no defamation claim here, so Tobinick claims that Novella's blog post is an advertisement and represents "false advertising." He also claims that it's trademark infringement, and then demanded the blog post be taken down via an injunction. Novella is fighting back in court and on his blog. On the blog, he highlights the ridiculousness of Tobinick claiming this is an advertisement:

An interesting wrinkle of this suit is that Tobinick is claiming that my blog post is an “advertisement.” This is a legal maneuver as the threshold for forcing someone to remove an advertisement is much lower than the threshold for suppressing their free speech. I can only assume that he and his attorneys are not bothered by the fact that blog posts on SBM are blatantly not advertisements.

In the case of the Enbrel article he had to make the absurd claim that the post (which does not mention my own practice) was an advertisement for my neurology practice at Yale, designed to attack a “competitor.” He would have us believe that Yale neurology in Connecticut is concerned about a distant clinic. Further, Yale Neurology is an academic practice. Our problem is too many referrals and long wait times, not competitors. To see how desperate the claim is, he argued that because I use Botox, which can be used to treat symptoms following stroke, that his treatments for stroke represent a competitor. However, I don’t use Botox to treat stroke patients. I mostly use it to treat migraines, as I am a headache specialist.

From there, he digs in, with even more detail about his criticism of Tobinick's "practice."

Tobinick is not a neurologist, and yet he feels it is appropriate for him to treat multiple neurological conditions with an experimental treatment. It is generally considered unethical for physicians to practice outside of their area of competence and expertise. He is trained in internal medicine and dermatology and is certified in those specialties. He has never completed a neurology residency nor is he board certified in neurology.

Despite his lack of formal training and certification, he feels he has ushered in a “paradigm shift” in the treatment of Alzheimer’s disease – a disease that has proved challenging for actual neurologists for decades.

His treatment of choice is perispinal etanercept (Enbrel), which basically is an immunosuppressant drug. He is using this treatment for not only Alzheimer’s disease, but neurological deficits following stroke, traumatic brain injury, and pain resulting from vertebral discs. He therefore claims that the neurological deficits in these various conditions result from active inflammation (specifically tumor necrosis factor – TNF) and by inhibiting TNF “rapid improvement” in neurological function is possible.

These claims are highly implausible, and in my opinion reflect his lack of training and expertise as a neurologist. Strokes cause ischemic damage to the brain – brain cells in severe stroke die. Inflammation following stroke is incidental, not causative. Yet Tobinick claims that 10 years following a stroke, long after any neurological recovery would have occurred, patients can improve by inhibiting TNF.

He makes the same claim for Alzheimer’s disease, despite the fact that this is a neurodegenerative disease resulting in loss and destruction of brain cells. An anti-inflammatory drug is not going to bring back dead brain cells, yet he claims “rapid improvement” is possible.

There's more of that. The response to the request for the injunction, written by lawyer Marc Randazza is (in typical Randazza fashion) well worth the read. Here's just a snippet.

Dr. Novella’s critical opinions of the Plaintiffs are not outlier views. In fact, the
prevailing view seems to be that Dr. Tobnick is, at best, irresponsible. On the first page of
Google alone, there are numerous other articles written by other authors, entirely unrelated
to the article at hand, that also express critical and unflattering opinions of Tobinick and
Plaintiffs’ “medical” practices. For example, in 2008, The Alzheimer’s Forum published an
article criticizing Tobinick, his treatment of patients, and his self-promotional “studies.”
That article evaluated a paper published by Tobinick, in which he presented a study
involving one patient who purportedly improved his Alzheimer’s condition within minutes of
receiving Enbrel injections (as if such a thing were possible). The article’s author reached
out to seven independent researchers, who all “expressed unease about the way in which
these studies were performed.” Furthermore, in that article, Cynthia Lemere, associate
professor of Neurology at Bringham and Women’s Hospital in Boston stated “[t]his is
exciting, but very preliminary information. The appropriate way to pursue it at this stage is
to apply to FDA and NIH for support to run a rigorous trial, not to promote it to the
general public.” That article presented the opinion that Tobinick’s use of Enbrel gave false
hope to Alzheimer’s patients, without being based in scientific and clinical research, and
pointed to a number of fatal flaws in the case report authored by Tobinick.

More importantly, also on the first page of a Google search for “Dr. Tobinick” is an
article published by Casewatch.org, outlining the history of disciplinary action against
Tobinick in California, including the formal accusations filed by David Thorton as the
Executive Director of the Medical Board of California, Department of Consumer Affairs.
The stated allegations in the disciplinary action were for unprofessional conduct relating to
his advertisement of Enbrel for the treatment of neck and back pain, in violation of the
California Health and Safety Code, constituting unprofessional conduct. The second cause
of action was for Tobinick’s unprofessional conduct relating to his failure to obtain a permit
for use of “Institute of Neurological Research” as a fictitious name. The disciplinary action
was settled, resulting in a one-year probationary period for Tobinick, in lieu of the
revocation or suspension of his medical license and surgeon’s certificate, as proposed by
Thornton.

The response also takes on the ridiculousness of arguing that this is an "advertisement" and a trademark claim rather than an attempt to do an end run around defamation law.

Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act
claim – presumably to ensure the availability of Federal Court jurisdiction and to try to sidestep the clear case law that cuts against them in defamation actions. But, no matter how
eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a
specious defamation claim as a Lanham Act claim does not remove the underlying speech
from the protections afforded by the First Amendment.

Plaintiffs come to this Court seeking extraordinary relief in the form of an
impermissible prior restraint on Defendant’s speech because of allegedly “false advertising.”
Tobinick’s request for this exceptional relief is impermissible under the First Amendment,
and a request for this Court to impose a prior restraint on Defendant’s speech. “The clearest
definition of prior restraint is an administrative system or a judicial order that prevents speech from
occurring.” There has been no judicial determination as to whether Dr. Novella’s article is
“false,” nor whether it is “advertising.” (It is neither.) Yet, Plaintiffs come to this Court
requesting Constitutionally extraordinary relief – the suppression of speech without due
process. The motion must be denied.

So, the end result of a questionable, bogus SLAPP lawsuit in an attempt to silence a critic -- is much more attention paid to the original claims and other aspects of Tobinick's past.

from the boom-goes-the-dynamite dept

I'll never understand what makes some people and organizations freak out when users of their systems make better versions. A decade ago we wrote about two examples of this: when a genealogist made a much better version of the interface to search through Ellis Island's data, and when someone built a better version of Odeon Cinema's website to work with non-IE browsers. In both cases, the official websites freaked out that someone might make a better version without permission.

The same kind of thing played out last week, with a story you might have heard of, concerning Yale blocking access to a site built by a pair of students (two years ago), creating a better course catalog. Unlike Yale's official course catalog, this one made it easy to see class evaluations and teacher ratings. Yale came up with a variety of excuses for this block, first saying that the site's name, YBB+ (for Yale Blue Book Plus) violated the university's trademark on Yale Bluebook. After the students changed the name to CourseTable, the university blocked it again, claiming it was "malicious."

When people pointed out how ridiculous that was, Yale told the two students that the real problem was that they had made it too easy to see that course evaluation data, which Yale did not approve for use of in that manner. Of course, data is data. And I don't see how Yale has any legitimate claim to block how anyone uses that data. You can't copyright the data. The best Yale could come up with was the silly claim that this was "violating the appropriate use policy" and "breaching the trust the faculty had put in the college to act as stewards of their teaching evaluations." That still doesn't make much sense, other than that the University wanted to try to hide data it had released itself.

Then, after all of that, Yale also claimed that CourseTable violated the copyright in the course descriptions. I would think that the developers would have an incredibly strong fair use claim here (use in education, not interfering with the market "value" of the original, etc.).

Either way, another Yale student, Sean Haufler, saw how ridiculous all of this was, and decided, what the heck, he could write a system that clearly gets around all of Yale's supposed complaints: he created a Chrome Extension, so that the same information from CourseTable/YBB+ shows up whenever anyone using it surfs through Yale's official site. He notes that this seems to get around all of Yale's claimed issues:

I built a Chrome Extension called Banned Bluebook. It modifies the Chrome browser to add CourseTable’s functionality to Yale’s official course selection website, showing the course’s average rating and workload next to each search result. It also allows students to sort these courses by rating and workload. This is the original site, and this is the site with Banned Bluebook enabled (this demo uses randomly generated rating values).

Banned Bluebook never stores data on any servers. It never talks to any non-Yale servers. Moreover, since my software is smarter at caching data locally than the official Yale course website, I expect that students using this extension will consume less bandwidth over time than students without it. Don’t believe me? You can read the source code. No data ever leaves Yale’s control. Trademarks, copyright infringement, and data security are non-issues. It’s 100% kosher.

As Haufler points out, he's hoping to demonstrate to Yale's administration that not only was this whole censorship effort stupid and futile, but that if it's granting students access to data, it shouldn't then try to block how they use that data. It seems especially troubling that an institution of higher learning would do this kind of thing.

Just as I was finishing up this post, I learned that Yale dean Mary Miller has admitted to perhaps reacting too hastily, and recognizing that technology has changed quite a bit. While she still seems to claim that using the data violates an acceptable use policy, she seems at least willing to consider this:

Although the University acted in keeping with its policies and principles, I see now that it erred in trying to compel students to have as a reference the superior set of data that the complete course evaluations provide. That effort served only to raise concerns about the proper use of network controls. In the end, students can and will decide for themselves how much effort to invest in selecting their courses.

Technology has moved faster than the faculty could foresee when it voted to make teaching evaluations available to students over a decade ago, and questions of who owns data are evolving before our very eyes. Just this weekend, we learned of a tool that replicates YBB+'s efforts without violating Yale’s appropriate use policy, and that leapfrogs over the hardest questions before us. What we now see is that we need to review our policies and practices. To that end, the Teaching, Learning, and Advising Committee, which originally brought teaching evaluations online, will take up the question of how to respond to these developments, and the appropriate members of the IT staff, along with the University Registrar, will review our responses to violations of University policy. We will also state more clearly the requirement/expectation for student software developers to consult with the University before creating applications that depend on Yale data, and we will create an easy means for them to do so.